*1 dеveloped prior any relevant to consider required interests. on the child’s best may impact hearing date hearings case, to the subsequent the instant in a home with and lived mother remarried December Additionally, updated an children. her new husband pеriod covering the time was available study report home hearing, court and domestic relations juvenile after psychological current about the children’s information custody influenced the final have physical condition that the circuit court erred if considered. hold decision We in the trial de novo only events that limiting evidence court juvenile and domestic relations occurred to the prior all relevant information hearings failing and in to consider at the time trial. available hearing. for a new We Accordingly, we reverse remand pending 1994 order continue effect April order that hearing. outcome of Reversed and remanded.
Court Norfolk.
April 1995. *2 Elder, J., opinion filed concurring part, and dissenting part. (Reese Anton, brief), for on Anton, & Williamsburg John appellant. (James III, Gilmore, S. Atty. Murphy, Asst. Gen.
Eugene brief), Gen., appellee. Atty. *3 ELDER, BAKER, JJ.
Present: JOSEPH E. WILLIS BAKER, Judge. his appeals from (appellant) Sandoval
Paulino DeJesus of Gloucester by the Circuit Court bench trial convictions (trial court) the intent for County theft, 18.2-91, cаrd § Code credit larceny, to commit was insuffi- § He contends that the evidence Code charge. he of either guilty cient to prove sufficient, is issue is whether evidence Where most favorable to light view the evidence in we fairly it inferences granting to all reasonable Commonwealth, 216 Higginbotham, therefrom. deducible (1975). card, viable ATM February a credit a On viable card, knife, A. Tucker belonging a hat to William (Tucker) February Tucker’s van. On were stolen from had that someone broken Shirley Ing (Ing) discovered being farmhоuse that renovat- County into her Gloucester wall and from a second-floor had been removed ed. Insulation had sleep covering. for Motor oil to have been used appeared mower, found stuck dipstick removed from lawn been Styrofоam, some and a fire patio had been built on a table turned upside living down on the room floor.
At Ing’s request, Virginia local State Police Officer E.L. Heptinstall (Heptinstall) agreed to watch keep over the house. February 23, 1993, Heptinstall On went the farmhоuse and found that it again had been into broken and discovered Appellant inside. possession had his the items and, addition, that had stolen been from Tucker’s van he possessed pistols.
I. Credit
ATM
Cards
Appellant
he
only
contends that
being
indicted
in possessiоn of stolen' credit cards and that
proof
support of the indictment was limited to evidence that the
cards were
argues
stolen. He
that in Cheatham v. Common
wealth,
(1974),
215 Va.
We Cheatham and Wilder an argument only that where possession is charged stolen card proved, § a conviction under Code 18.2-192 will be over- Cheatham, turned. In only connecting defen- dant to the theft was that he found the card and it inwas his Wilder, possession. the only charge against the accused *4 was that he had “in his possession two or belong- more cards to ing 146, Mrs. John W. Cowan.” Id. at at 225 S.E.2d 412. Supreme “a charge Court said of possession mere of a stolen credit card is sufficient to state the offense of credit 147, case, Id. card S.E.2d at 413. In each the theft.” charge proof and were to possession. limited mere Thosе inapposite cases are here. in
Appellant charged was an provided: indictment that February 12,1993, Gloucester, On of County about the Virginia, [appellant] unlawfully did feloniously engage and of the cardhold- by, theft without the consent credit card cards, er, namely two a VISA taking withholding Tucker. Card, the of William A. property Bank Va.Code Sec. added.) Thus, “taking” charged
(Emphasis appellant Here, was more proof guilt the cards. “possessing” appel to the that possession. than addition mere twо cards stolen from possession lant found hat van, possession to Tucker’s he also shown be place. which at the same time and and knife were stolen record, in this fact finder could Under the facts contained reasonably rejected exрlanation have and reason appellant’s unlawfully thief took ably inferred that was the who Commonwealth, 184, the credit cards. See Fout v. Commonwealth, (1957); 190-91, 817, Hope v. 98 S.E.2d 821-22 (en banc). (1990) 381, 830, 385, 10 Va.App. Breaking Entering/Intent II. to Steal unlawfully concedes that he had entered Appellant entry farmhouse. He denies that his was with intent steal fails charged argues in the indictment and that the evidence charge. disagree. that We February Ing The record discloses that on into farmhouse. discovered someone had broken hеr She repaired by the initial and se damage caused premises. cured the She boarded the windows and closed Thereafter, appellant, Ing’s permission, doors. without opened premises. back door and entered the When premises, pоssessed pistols on the he discovered van, stolen items from the inference permitted which he was the thief. person’s in a mind purpose
Intent is the formed must, from the facts and may, and often be inferred in a case. particular Ridley circumstances Thе state an shown his acts and conduct. mind of accused be Hargrave v.
138
(1974);
Johnson v.
291,
598
295,
163
570,
(1968).
574
entry
When an unlawful
is
into
made
another,
a
dwelling
presumption
is that
entry
an
purpose,
made for
unlawful
specific
and the
intent with
which such entry
was made
be
from
inferred
the sur-
facts
Tompkins
v. Common-
rounding
circumstances.
wealth,
460, 461,
(1971).
Va.
184 S.E.2d
In the
intent,
absence of
showing
contrary
evidence
the trier of fact
may infer that
person’s
presence
unauthorized
in another’s
house
with
Ridley, the intent to commit
larceny.
Va.
Appellant’s assеrtion that he was “squatter” mere is farmhouse His controlling. assertion squarely before the trier of fact be with along considered presumption of his intent created his entry unlawful into dwelling of another. The credibility of the witnesses and the weight accorded thе solely evidence are matters for the fact finder who has opportunity to see and hear evidence as it is presented. Schneider v. (1985); Carter v. Com- 736-37
monwealth, stated,
For the reasons we hold that the evidence suffi- and, cient to both accordingly, convictions the judg- ments of the trial court are affirmed.
Affirmed.
ELDER, Judge, concurring in part dissenting in part. part concur the majority’s opinion regarding ruling the credit card thefts. I dissent from ruling regarding appellant’s conviction
intent to commit larceny.
I.
Credit and ATM Cards
I agree that credible
supports
the trial court’s
decision that
committed credit card theft in violation
*6
majority’s analysis
agree
§
I also
with the
of
18.2-192.
Code
Commonwealth,
208 S.E.2d
215 Va.
v.
Cheatham
of
Commonwealth,
145,
v.
(1974),
Wilder
760,
and
762
However,
separately
this
write
225
411
S.E.2d
Commonwealth, 210
I believe that Sullivan
issue because
998,
сert. denied 397 U.S.
(1969),
90
201,
of
1142,
(1970),
the disposition
L.Ed.2d 408
controls
S.Ct.
Sullivan,
with
charged
the
was
case.
In
defendant
this
in
a credit card that
was found
of
possession
after he
burglary
distinguishing
In
three months earlier.
was stolen almost
Sullivan,
held as follows:
Cheatham from
Supreme
the
Court
...
an inferеnce that
Sullivan
the evidence warranted
[I]n
at
and
theft were committed
the
the
and
and
a
of the same
by
person
part
the same
same time
transaction,
recently
of
possession
so that the exclusive
the
...
rise to the inference that
рroperly give
stolen card
could
committed
burglary.
had
possessor
[the defendant]
Supreme
recency
possession
that
of
also held
[The
Court]
of
an issue to
the trier
fact.
be determined
288,
Cheatham v.
The are Cheatham, the de- This case differs from where inapposite. statutory of credit card “charged fendant with the offense withholding” card from the true owner theft credit charged He possession. after it came into his Id. The mere of “possession” “taking” the credit card. finding of stolen credit card was held insufficient to Wilder, Furthermore, only charge card theft. credit “possession” had in his accused was that he against Supreme Court cards to the true owner. belonging more card is chаrge possession mere a stolen credit held “theft.” the offense credit card not sufficient state Wilder, in Cheatham Thus, at 413. Wilder, limited to mere charge proof were taking. possession, charge without case, charged “posses- this was not with mere instead, charged with the he was “withholding;” sion” or cards, Sullivan. “taking” “possession” of the credit inas Furthermore, supported credible evidence the trial court’s determination because the credit cards were found on theft, appellant’s person days taking eleven after their element was (compared satisfied the three month interval Sullivan, also sufficient to support the defendant’s conviction). record, Under facts contained this Sullivan, following the trial court reasonably could re- have jеcted appellant’s explanation reasonably infer that appel- took lant was the thief unlawfully who credit cards § Hope See violation of Code (1990) (en banc). Va.App.
II. and Breaking Entering/Intent to Steal respectfully disagree majоrity with the and would hold that the evidence was appellant insufficient to convict of breaking entering and commit with the intent to larceny § violation of Code appellant conceded he While that farmhouse, unlawfully Ing’s entered the evidence is insuffi- to cient to prove appellant’s specific larceny. intent commit Commonwealth, The majority correctly Ridley cites (1979), S.E.2d 313 the that proposition intent can be inferred from the facts and circumstances in a particu- In Ridley, lar case. thе Supreme Court affirmed the defen- dant’s conviction for breaking the of a storehouse company furniture to with intent commit larceny. The Court stated: ordinary mind will take of cognizance
[A]n the fact that not people do break and containing еnter closed store nighttime personal property the with innocent intent. there is explanation Where no of a evidence different intent, here, intelligent the mind entry will infer that with the intent to steal property in the store.
Ridley,
vide credible evidence to assertion Tompkins v. shelter. See using Ing’s farmhouse as (1971). of several “Whenever the evidence leaves indifferent which true, only some finite merely establishes hypotheses probability hypothesis, in favor of one such evidence does Maynard amount reasonable doubt.” prоof beyond 910, 912, rev’d Va.App. grounds, on en on other reh’g banc Va.App. reasons, foregoing appellant’s
Based would affirm conviction credit card theft would reverse his convic- but tion for with the intent to commit larceny.
Fauquier Community Policy Management Team County Fauquier Family Board, Fauquier School Guidance Services, Fauquier County Family Assessment and Plan- ning Team
Timothy Elliott ROBINSON and Charlene Banks Robinson.
Record No. 0690-94-4. Appeals Virginia, Court of
Alexandria.
April 4, 1995.